The case is offering a rare glimpse into how ICE, a growing and largely secretive government bureaucracy, handles open-records requests — a relatively routine process that's predicated on government transparency.
According to ICE's own policies, it is supposed to respond to FOIA requests within twenty business days of submission. CREEC, a highly regarded civil-rights organization whose co-founders are being honored by the ACLU of Colorado on September 27 with lifetime recognition awards, filed nine FOIA requests with ICE last August and September. The FOIA requests were part of an initiative at CREEC that it calls the Immigration Detention Accountability Project, with a wider mission of investigating the treatment (and mistreatment) of immigrant detainees, particularly detainees who have disabilities and mental-health issues. The FOIA requests from CREEC also ask for death reports for detainees who have died in detention, reports of sexual assaults at a detention facility in California, and details about standards and procedures for facilities across the nation, including Colorado's immigrant detention center in Aurora, which ICE has contracted out to the private prison company GEO Group.
A year after filing those requests, CREEC has yet to receive a single document.
Prolonged wait times are not unheard of with FOIA requests; at Westword, we've experienced that firsthand, including with a FOIA request we made to ICE about courthouse arrests — that took six months to process. Still, federal agencies are at least supposed to provide regular updates on processing FOIAs, including estimates of document retrieval dates.
But CREEC has had trouble even finding out the status of its requests. Emails have gone unanswered. And staff members have repeatedly called the number that ICE provided for its FOIA office, only to reach an answering machine every time, which tends to be full.
On February 7, the organization sued ICE in a Colorado court. The wheels of the federal court case are slowly turning, but a declaration submitted to the court by ICE has already proven to be revealing.
In a filing on August 6, ICE FOIA Officer Catrina Pavlik-Keenan made a number of significant claims that shed light on how the agency has treated open-records requests in a time when the Trump administration has simultaneously ramped up immigration enforcement, enacted a “zero tolerance” policy that enabled family separation, and made ICE a front-and-center player of campaign events.
In essence, Pavlik-Keenan's declaration pleads with the District Court of Colorado for leniency. In it, she reveals that ICE has a backlog of 1,988 FOIA requests and that the numbers of overall requests jumped from 44,738 in fiscal year 2017 (which ran from October 1, 2016, to September 30, 2017) to 79,915 requests received in fiscal year 2018, up to July 30.
Moreover, she reveals that the FOIA office at ICE was dealing with 78 lawsuits as of early August, for which the agency has only assigned three “litigation processing unit” employees to turn over documents at the discretion of judges in those cases. And those three employees are also being made to take up other duties.
The vast shortage in manpower, Pavlik-Kennan says, comes “due to the loss of nine ICE FOIA employees due to budget cuts. ... Members of the team are also increasingly required to assist other units within ICE FOIA on the processing of incoming FOIA requests, congressional inquiries and other projects at any given time. Each personnel team member can process on average 100 to 300 pages per day, depending on the complexity of the documents.”
CREEC staff attorney Elizabeth Jordan tells Westword that she found the statements contained in Pavlik-Kennan's declaration incredible. “This is an agency that operates by its own — often absurd — logic, with little regard for public access or transparency,” she says. “We’ve decided to hold them to account in the courts."
“The increase in the number of FOIA requests directed to ICE was inevitable, not to mention entirely predictable.”
CREEC’s case is being represented pro bono by attorneys Thomas Kelley and Amber Gonzales of Ballard Spahr LLP, a national firm with First Amendment expertise.
Kelley tells Westword that because the case is in federal court, a decision at the district level could be used to advise similar cases across the country. And if the case is later appealed up to the Tenth Circuit Court of Appeals, a decision there would set mandatory precedent in all federal courts of the Tenth Circuit (which includes Colorado, Wyoming, Utah, New Mexico, Oklahoma and Kansas).
After ICE's declaration, Kelley helped prepare a response that was submitted to the court on Monday, September 17. The plaintiffs seized upon Pavlik-Kennan's claims of budget cuts and unprecedented workloads.
How could this be when the overall budget of ICE has grown from $6 billion in 2017 to nearly $8 billion in 2018?
As the CREEC litigants note in their response, “The ICE Declaration is refuted by the budget request for ICE that was submitted to Congress for fiscal year 2018, which seeks…to expand operations in the area of arrest and detention of non-citizens."
Meanwhile, President Donald Trump has promised since his first week in office to increase the arrests and deportations of non-citizens. He issued an executive order doing away with Obama-era policies that prioritized enforcement against immigrants with criminal records. Since the "Enhancing Public Safety in the Interior of the United States" executive order, issued on January 25, 2017, any undocumented person is fair game for detention and deportation.
In the executive order, Trump also vowed to hire 10,000 additional ICE agents for enforcement purposes. In fact, there's now a whole section about the 10,000 new agents on ICE's own website, in its FAQ section.
With the goals of the Trump administration clear, CREEC's recent court filing notes, “The increase in the number of FOIA requests directed to ICE was inevitable, not to mention entirely predictable.”
But the agency neglected to increase line items in its budget to expand its FOIA office and handle additional FOIA requests. “The 2018 Budget request makes no mention of any funds needed or requested to address the anticipated increase in the number of FOIA requests,” the litigants note.
So while there may be 10,000 new hires planned, those do not include new employees to handle open-records requests.
FOIA requests, it seems, were an afterthought in the more than $1 billion expansion of ICE under Trump.
A status hearing in the case is scheduled for this week. Follow westword.com/news for updates.